820 F.

2d 31
125 L.R.R.M. (BNA) 2648, 96 A.L.R.Fed. 365,
106 Lab.Cas. P 12,387
ASSOCIATED BRICK MASON CONTRACTORS OF GREATER NEW
YORK,
INC., Petitioner- Appellee,
v.
James R. HARRINGTON, in his capacity as Secretary-Treasurer,
and John Loretoni, in his capacity as Chairman of District
Council of New York City and Long Island for the
International Union of Bricklayers and Allied Craftsmen
Locals Nos. 1, 9, 21, 30, 34, 37 & 41, an unincorporated
labor association, Respondents-Appellants.
No. 1076, Docket 87-7140.

United States Court of Appeals,

Second Circuit.
Argued April 28, 1987.
Decided May 22, 1987.

Roger M. Levin, New York City (Levin & Weissman, Damien E. Mysak,
Kenneth P. Schneider, Ronald J. Katter, Andrew A. Gorlick, of counsel),
for respondents-appellants.
Joseph A. Fiore, Garden City, N.Y. (Albanese, Albanese & Fiore, Richard
Metli, Barry A. Oster, of counsel), for petitioner-appellee.
Before FEINBERG, Chief Judge, and KEARSE and WINTER, Circuit
Judges.
FEINBERG, Chief Judge:

The District Council of New York City and Long Island for the International
Union of Bricklayers and Allied Craftsmen Locals Nos. 1, 9, 21, 30, 34, 37 and
41 (the union) appeals from an order of the United States District Court for the
Eastern District of New York, Mark A. Costantino, J., granting the petition of
Associated Brick Mason Contractors of Greater New York, Inc. (Associated) to
compel arbitration of certain grievances concerning an alleged manpower

shortage in the greater New York masonry industry. For the reasons that follow,
we affirm the district court's order compelling arbitration.
I. Background
2

On July 6, 1984, after a period of negotiating a new collective bargaining

agreement, the union and Associated entered into a three-year agreement (the
Agreement) that continued in effect an arbitration clause. That clause provided,
in part:

ARTICLE VIII--ARBITRATION
3
Section
1. Except as herein otherwise provided in Article V of this Agreement, all
complaints, disputes or grievances arising between the parties hereto involving
questions of interpretation or application of any clause of this Agreement, or any
acts, conduct or relations between the parties or their respective members, directly or
indirectly, claiming to be aggrieved, shall be submitted in writing [to arbitration in
the manner set forth in the Agreement].
4

Section 1 of Article VIII also provided that:

5
Each
case shall be considered on its merits and the within Collective Agreement
shall constitute the basis upon which decisions shall be rendered.
6

Appellant union characterizes Section 1 of Article VIII, which is reproduced in

full in the margin,1 as a "rights" arbitration clause, designed to resolve disputes
relating to terms or conditions of the collective bargaining agreement that arise
during its term. See Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S.
711, 723, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 (1945).

Section 2 of Article VIII, which was also continued in effect, provided a

procedure by which the parties could request changes in the Agreement a few
months before the expiration of its three-year term. If "the terms of renewal"
were not agreed upon 60 days before the termination date of the Agreement,
"all terms in dispute concerning which a deadlock may exist are to be referred
to an arbitration tribunal for determination" in the manner set forth in the
Agreement. The union characterizes Section 2, which is also set out in full in
the margin,2 as an "interest" or "impasse" arbitration clause designed to resolve
disputes leading to a new labor contract. See id. Indeed, on the same day that
the parties entered into the Agreement by renewing most of its terms, including
Article VIII, they apparently also avoided arbitration under Section 2 of Article
VIII of the expiring labor contract, by agreeing to a Memorandum of

Understanding (the Memorandum), which required them to hire a labor

economist to explore whether a "manpower" shortage existed in the bricklaying
industry and, if a shortage did exist, to propose remedies for the parties to
discuss. The union and Associated then hired D. Quinn Mills, a labor
economist, who, in a report issued in December 1984 (the Mills Report), found
that there was a manpower shortage in the bricklaying industry. The Mills
Report recommended, among other things, that the union and Associated
enhance their training program and that they consider adopting an eight hour,
straight-time workday, in place of the prevailing seven hour, straight-time
workday with the eighth hour at double-time.
8

After discussion of the Mills Report bogged down, Anthony J. Zotollo,

Associated's president, wrote to James R. Harrington, the union's secretarytreasurer, in May 1986, demanding arbitration concerning the following
grievances, all dealing with the alleged manpower shortage: (1) the union's
conduct in dealing with the recommendations contained in the Mills Report; (2)
the union's decision to grant other employers more favorable overtime
conditions; and (3) the union's delay in training apprentices. The union refused
to arbitrate these disputes. In June 1986, relying on Section 1 of Article VIII,
Associated filed a petition in the United States District Court for the Eastern
District of New York, seeking to compel arbitration pursuant to Section 301 of
the Labor Management Relations Act, 1947, 29 U.S.C. Sec. 185, and Section 4
of the Federal Arbitration Act, 9 U.S.C. Sec. 4. In a Memorandum of Decision
and Order, filed January 21, 1987, and later elaborated in a Memorandum of
Decision and Order, filed March 24, 1987, District Judge Mark A. Costantino
directed the parties to arbitrate the grievances with due diligence. The union's
appeal is now before us.

II. Arbitrability
9

On appeal, the union argues that it is not required by the arbitration clause in
the Agreement to arbitrate grievances relating to issues covered by the
Memorandum. It also argues that Associated's petition to compel arbitration is
barred by the statute of limitations, is moot because no relief is possible and is
barred by the doctrine of laches. We address these arguments in turn.

10

To prevail in its petition to compel arbitration, Associated must establish that "
(1) an arbitration agreement exists; (2) the dispute falls within the scope of the
arbitration agreement ... and (3) the dispute does not involve the making of the
agreement or the failure to comply therewith." Prudential Lines, Inc. v. Exxon
Corp., 704 F.2d 59, 63 (2d Cir.1983). In this case, the union argues that the
second requirement has not been met.

11

As a preliminary matter, we note that our scope of review is quite narrow. The
existence of an arbitration clause in the Agreement raises a presumption of
arbitrability that can be overcome only if "it may be said with positive
assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute. Doubts should be resolved in favor of coverage."
AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S.
643, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986) (quoting United
Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 58283, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960)). We will order arbitration
if the arbitration clause is broad and if the party seeking arbitration has made a
claim that on its face is governed by the contract, even if the claim appears to
be frivolous. See AT & T Technologies, Inc., 106 S.Ct. at 1419; Emery Air
Freight Corp. v. Local Union 295, 786 F.2d 93, 96-97 (2d Cir.1986). If,
however, the arbitration clause is narrow, and the dispute involves a collateral
agreement, then "arbitration of that dispute cannot be compelled merely based
upon the existence of an arbitration clause in the main agreement." Prudential
Lines, Inc., 704 F.2d at 64 (citing Rochdale Village, Inc. v. Public Service
Employee Union, Local No. 80, 605 F.2d 1290, 1296-97 (2d Cir.1979)).

12

In this case, the union faces an uphill battle in resisting arbitration. The district
court correctly noted that the arbitration clause contained in section 1 of Article
VIII is "a very broad" one. Except for disputes relating to Article V of the
Agreement, which concerns strikes and lockouts, the clause provides for
arbitration of "any acts, conduct or relations between the parties or their
respective members, directly or indirectly, claiming to be aggrieved."

13

The union argues that the district court failed to consider "forceful evidence" of
the parties' intention to limit the scope of the arbitration agreement to issues
arising out of the terms and conditions of the Agreement. See AT & T
Technologies, Inc., 106 S.Ct. at 1419. As evidence of this intention, the union
points to an affidavit submitted by Zotollo in a prior action between the parties,
in which he stated that the arbitration clause was "intended only to cover
disputes and grievances arising out of the trade agreement," and stresses that all
prior arbitrations under the clause related to subjects discussed in the
Agreement. The union also claims that the Memorandum, which the parties
executed on the same day as the Agreement, constitutes further evidence of an
intention not to arbitrate Associated's grievances. The union argues that the
Memorandum was executed in order to avoid the impasse arbitration provided
for in Article VIII, Section 2 of the labor agreement then in force, and that the
Memorandum neither contains an arbitration clause nor incorporates the
arbitration clause of the Agreement.

14

Assuming, without deciding, that the "forceful evidence" mentioned in AT & T

Technologies, Inc. may consist of evidence other than the language of the
contract itself, the union's arguments do not persuade us "with positive
assurance" that the parties intended to limit their arbitration agreement to the
terms and conditions of the Agreement. Section 1 of Article VIII, by its express
terms, covers disputes involving not only "interpretation or application of any
clause" of the Agreement but also "any acts, conduct or relations between the
parties ... directly or indirectly, claiming to be aggrieved." The language of this
arbitration clause could hardly be broader, and Associated's grievances
regarding a manpower shortage appear on their face to fall within its reach.

15

It is true that the grievances relate to matters growing out of the subject matter
of the Memorandum, which contains no arbitration clause and was probably
agreed to in order to avoid the impasse arbitration provided for in Section 2 of
Article VIII of the agreement then in force. This is undoubtedly the basis of the
union's claim that Associated is improperly trying to invoke the Agreement's
"rights" arbitration clause (Article VIII, Section 1) to resolve disputes that are
only arbitrable under the "interest" arbitration clause (Article VIII, Section 2).
However, in view of the broad language of Section 1, we cannot say with
positive assurance that the same issue may not be subject to arbitration under
either Section 1 or Section 2, depending on the timing of the demand for
arbitration. Whether the arbitration tribunal could, or should, reach the same
result on the merits of that issue in view of the different wording of Sections 1
and 2 and the context in which disputes arise thereunder is not before us.
Certainly, only the arbitrator can properly decide whether, as the union
contends, there is no merit to Associated's grievances under Section 1 because
there is no term in the Agreement that deals with the manpower shortage and
the union's only obligation under the Memorandum was to "discuss and to
consider the findings of the" Mills Report, which it did. Accordingly, we hold
that the dispute between the parties is arbitrable.

III. Statute of Limitations

16

The union and Associated also disagree over what statute of limitations period
should apply to Associated's petition to compel arbitration. Oddly enough, in
view of the number of arbitration matters we hear, we do not appear to have
passed upon the precise issue. That issue, it should be noted, is not whether
Associated's demand for arbitration was timely, which is ordinarily for the
arbitrator to decide, Conticommodity Services Inc. v. Philipp & Lion, 613 F.2d
1222, 1226-27 (2d Cir.1980), but whether "the statute of limitations ha[s]
expired on [the] right to seek judicial enforcement of the arbitration
agreement." Id. at 1225. That right, of course, does not arise until a party

"breache[s] the arbitration agreement by refusing to arbitrate." Id. See also

Federation of Westinghouse Independent Salaried Unions v. Westinghouse
Electric Corp., 736 F.2d 896 (3d Cir.1984).
17

Congress has not adopted a statute of limitations for actions brought under
Section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185.
Accordingly, the Supreme Court has held that "the timeliness of a Sec. 301 suit
... is to be determined, as a matter of federal law, by reference to the appropriate
state statute of limitations." Auto Workers v. Hoosier Cardinal Corp., 383 U.S.
696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966). The question is
which statute of limitations is "appropriate."

18

The union argues that the applicable limitations period is the federal six-month
statute of limitations for unfair labor practices established by Section 10(b) of
the National Labor Relations Act, 29 U.S.C. Sec. 160(b). See, e.g.,
International Association of Machinists and Aerospace Workers, Local Lodge
No. 1688 v. Allied Products Corp., 786 F.2d 1561 (11th Cir.1986); Teamsters
Union Local 315 v. Great Western Chemical Co., 781 F.2d 764 (9th Cir.1986).
This position finds support in the Supreme Court's decision in DelCostello v.
International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76
L.Ed.2d 476 (1983), where the Court applied the six-month statute of
limitations of Section 10(b) to a "hybrid" claim by union members against their
employers for breach of collective bargaining agreements and against their
collective bargaining representatives for breach of the duty of fair
representation.

19

Associated urges this court to adopt New York's six-year limitations period
governing contract actions. N.Y. Civ. Prac. L.R. Sec. 213(2). See
Reconstruction Finance Corp. v. Harrisons & Crosfield, 204 F.2d 366, 369 (2d
Cir.) (decided before DelCostello ), cert. denied, 346 U.S. 854, 74 S.Ct. 69, 98
L.Ed. 368 (1953). Associated argues that DelCostello should not be extended to
apply to pure Section 301 actions and that the Supreme Court's decision in
Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, controls. In that case,
which was a straightforward suit under Section 301 for vacation pay, the Court
borrowed the analogous six-year state statute of limitations.

20

In Robinson v. Pan American World Airways, Inc., 777 F.2d 84 (2d Cir.1985),
this court stated the general rule that when a federal statute does not specify a
limitations period the courts generally borrow the most analogous period under
state law. We noted, however, that:

[t]he selection of a limitations period is an exercise of the court's discretionary power

21

to fashion appropriate measures to carry out the intent of the federal legislation.
Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946).
Where the state procedural rule conflicts with the substantive purposes of the federal
cause of action, however, courts have not hesitated to deviate from this rule of
thumb. See, e.g., Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 367, 97
S.Ct. 2447, 2454, 53 L.Ed.2d 402 (1977) (state limitations period rejected for Title
VII claim brought by EEOC).
22

777 F.2d at 86. Because we find that application of New York's six-year
limitations period for contract actions would conflict with the substantive
purposes of federal labor law, we hold that the six-month statute of limitations
under Section 10(b) of the National Labor Relations Act applies to actions to
compel a labor arbitration.

23

Six years is simply too long to allow industrial disputes to fester. See Robinson,
777 F.2d at 89 ("speedy settlement" of dispute arising out of "labormanagement relationship ... is highly desirable"). The Court in DelCostello
recognized that federal labor policy relied heavily on "grievance, arbitration,
and the 'law of the shop,' [and] could easily become unworkable if a decision ...
could suddenly be called into question ... years later." 462 U.S. at 169, 103
S.Ct. at 2293 (quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 64,
101 S.Ct. 1559, 1564, 67 L.Ed.2d 732 (1981)). By contrast, a six-month statute
of limitations will encourage the prompt resolution of grievances. Six months
sets "the proper balance between the national interests in stable bargaining
relationships and finality of private settlements," DelCostello, 462 U.S. at 171,
103 S.Ct. at 2294 (quoting Mitchell, 451 U.S. at 70, 101 S.Ct. at 1568 (Stewart,
J., concurring)), and a party's interest in invoking the arbitral process under the
collective bargaining system. Also, because many grievances involve activity
that may also constitute an unfair labor practice under the National Labor
Relations Act, it makes sense to have a common statute of limitations for
claims arising under Section 10(b) and actions to compel arbitration. See
Westinghouse, 736 F.2d at 902.

24

Associated argues that application of a federal statute of limitations to actions to

compel arbitration is inconsistent with decisions from other circuits that apply
relatively long state statutes of limitations to actions to enforce arbitration
awards. See Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983);
International Union of Electrical, Radio and Machine Workers v. Ingram Mfg.
Co., 715 F.2d 886 (5th Cir.1983), cert. denied, 466 U.S. 928, 104 S.Ct. 1711,
80 L.Ed.2d 184 (1984). We do not agree. A dispute between a union and an
employer remains completely unsettled between the time a grievance arises and
the time a petition to compel arbitration is filed. By contrast, there is little or no

uncertainty concerning the status of a grievance after an arbitrator issues an

award and before an action to enforce that award is filed. See Westinghouse,
736 F.2d at 901, 902 & n. 4. In both situations, the limitations period chosen is
appropriate because it promotes industrial harmony and maintains the integrity
of the arbitral process.
25

The union next argues that Associated's petition to compel arbitration, filed in
June 1986, was untimely under the applicable six-month statute of limitations.
As already indicated, it is well established that a cause of action to compel
arbitration accrues when a party unequivocally refuses a demand to arbitrate.
See Westinghouse, 736 F.2d at 902. The union argues that Associated's claim
accrued on or about March 1, 1985, when Harrington notified Zotollo of the
union's refusal to submit the grievances to arbitration. Noting that the
Agreement requires that the demand for arbitration be in writing, Associated
argues that its cause of action did not accrue until May 1986, when the union
rejected Associated's written demand to arbitrate. Associated also disputes the
union's contention that it made an earlier oral refusal to arbitrate. In this case,
the district court found that Associated's cause of action accrued when the
union rejected the written demand for arbitration in May 1986. We agree. The
petition to compel arbitration, brought in June 1986, is timely.

IV. Other Claims

26

The union's remaining claims must be referred to the arbitrator for decision.
The union raises the defense of laches, claiming that it is prejudiced by
Associated's delay in demanding arbitration. As already indicated, this issue is
for the arbitrator. Conticommodity Services Inc., 613 F.2d at 1226-27. The
union also claims that this action is moot because the Agreement expires on
May 31, 1987, and none of Associated's grievances are susceptible to
retroactive relief. These claims do not affect the court's limited inquiry on a
petition to compel arbitration. See Prudential Lines, Inc., 704 F.2d at 66.

27

The order compelling arbitration is affirmed.

Section 1 of Article VIII provides:

Section 1. Except as herein otherwise provided in Article V of this Agreement,
all complaints, disputes or grievances arising between the parties hereto
involving questions of interpretation or application of any clause of this
Agreement, or any acts, conduct or relations between the parties or their
respective members, directly or indirectly, claiming to be aggrieved, shall be

submitted in writing by the party hereto and the Arbitration Board of the
respective Association and the Arbitration Board of the Bricklayers' Unions
mentioned herein (who shall together constitute and be designated as the Joint
Arbitration Board) shall in the first instance investigate such complaints,
grievances or disputes, and attempt adjustment. The Joint Arbitration Board
shall consist of three (3) representatives designated by the District Council and
three (3) representatives designated by the Association. Decisions determining
such complaints, disputes and grievances shall be arrived at within ten (10)
days after submission in writing in the manner above referred to of such
complaint, dispute or grievance, unless time is extended in writing by the
chairmen of both Arbitration Boards constituting the Joint Board.
Decisions jointly reached by the Joint Arbitration Board shall be binding on the
parties hereto.
Should the Joint Arbitration Board fail to agree, the question or dispute shall be
referred to an umpire selected by the Joint Arbitration Board, if a request in
writing is filed within forty-eight (48) hours thereafter by either party to this
Agreement. Should the parties constituting the Joint Arbitration Board fail to
agree upon the selection of an umpire within five (5) days after such request is
made, then, upon the application of either party, the President of Fordham
University or his successor shall summarily appoint such umpire. Each side
shall present its case before the umpire who shall within two (2) days thereafter
render his decision. The decision rendered shall be final and binding upon both
parties hereto. The decision of the umpire with respect to an interpretation of
any provision of this Agreement shall be binding upon the parties to this
Agreement. Each case shall be considered on its merits and the within
Collective Agreement shall constitute the basis upon which decisions shall be
rendered.
All decisions reached by the Arbitration Boards of the parties hereto, or
rendered by the umpire, shall be complied with within forty-eight (48) hours.
Should any member of the Association fail to comply with such decision within
such time he shall automatically lose all rights and privileges under this
Agreement and the Unions shall be free to take action to enforce the rights of
the Unions or any of its members against such member of the Association.
All disputes shall be heard on notice sent by registered mail to all parties
interested therein. The compensation of the umpire shall be upon a perdiem
basis for the time consumed in hearing and determining disputes as herein
provided and in an amount agreed upon between the parties to this Agreement
and the umpire. The amount so agreed upon and any incidental expenses
incurred by the umpire shall be borne equally between the parties to this

Agreement.
The Arbitration Board and umpire shall have all the powers accorded to an
arbitrator under the arbitration laws of the State of New York and the rules of
the American Arbitration Association, the Arbitration Board to subpoena
witnesses, or books, records, documents, etc., as hereinafter more fully
provided.
The members of the Association will be required to keep records from the date
of this Agreement and for the entire duration thereof, of all payrolls, cancelled
checks, and other books and records where material and relevant to such
dispute, complaint or grievance, when requested by the Joint Arbitration Board
or umpire. A set of rules and regulations for the conduct and procedure of the
Joint Arbitration Board shall be adopted within thirty (30) days of the
consummation of this Agreement.
2

Section 2 of Article VIII provides:

Section 2. The third Friday in February shall be the date set for a special
meeting for the consideration of the Trade Agreement by the Joint Arbitration
Boards. Should either side desire any change in this Agreement other than as
provided before, such change must be submitted in writing before the special
meeting on the third Friday in February, 1984. If the terms of renewal are not
agreed upon by March 31, 1984 all terms in dispute concerning which a
deadlock may exist are to be referred to an arbitration tribunal for
determination, such tribunal to be selected in the manner described below:
On or before April 5, 1984 should a deadlock exist on March 31, 1984, each
side shall select one (1) man as its representative on said tribunal and such
representatives so selected shall be authorized and directed to select a third man
as umpire or referee. Should the representatives so directed fail to agree upon
the selection of an umpire within five (5) days, and upon the application of
either party, the President of Fordham University, or his successor, shall
summarily appoint such umpire. Should arbitration with respect to the deadlock
existing on March 31, 1984 be continued beyond May 31, 1984 the findings
shall be retroactive to June 1, 1984.
As indicated in the text, the contract was renewed except as modified in certain
respects. Whether the dates in Section 2 were to be changed is not a question
we have to reach in this decision.